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In the inaugural post for this series on Canadian law and the COVID-19 pandemic, David Dyzenhaus argued that the federal government should not invoke the federal Emergencies Act, but rather, Canadian responses to COVID-19 should continue to employ our usual constitutional and legal frameworks. Dyzenhaus identified four reasons to be cautious about employing the Emergencies Act. I agree with his post, and I want to highlight another consideration that should inform the debate around whether to employ emergency frameworks: namely, the likelihood that the threat of COVID-19 is a long-term reality or, in the words of our Chief Public Health Officer, Dr. Theresa Tam, “the new normal”.[1] This blog post draws on scholarship from the security and anti-terrorism field to caution about operating outside the usual legal frameworks to deal with the pandemic. To be clear, I recognize that governments may need to employ exceptional measures to tackle the destructive spread of the virus. However, I suggest that these exceptional measures should be taken through usual constitutional and legal frameworks and we should resist changes to legal or constitutional norms, such as, for example, erosion of constitutional and Indigenous rights, employment of the notwithstanding clause, departures from federalism constraints, or violations of unwritten principles like the rule of law.

The past month has brought sweeping, unprecedented change as individuals, communities and nations around the world struggle to deal with the COVID-19 pandemic.

Efforts to contain the virus include significantly increased government powers and corresponding limits on civil liberties, as well as disruptions to individuals’ ability to work, socialize and care for one another.

In Canada, Indigenous Peoples stand to be disproportionately affected by both COVID-19 and government measures intended to limit its spread. These impacts are a direct result of the historic and ongoing process of colonization. Below, we highlight some of the key issues raised by our clients and other Indigenous groups as the pandemic situation evolves.

On March 11, 2020, the World Health Organization declared SARS-CoV-2 (COVID-19) a pandemic. The world, and the administration of justice in Canada, changed dramatically within days.

As pertinent examples of the effects on the administration of justice: circuit courts closed; the public were excluded from court rooms; criminal and civil court matters were summarily adjourned far into the future, sometimes with warrants “held,” although the accused were precluded from attending; trials were adjourned.

This list is not intended to be exhaustive but highlights the events that may cause breaches of section 11(b) of the Charter of Rights and Freedoms, which protects the rights of individuals to be tried within a reasonable time.

At the time of writing, this author knows of no case brought alleging delay caused in any part by the pandemic. This paper discusses the potential for such a case, and what courts and counsel may do to mitigate potential breaches of section 11(b).

On June 16, 2019, the Quebec legislature invoked Section 33 of the Canadian Charter of Rights and Freedoms in order to suspend, with regard to the Act respecting the laicity [secularism] of the State (ALS) that it was passing, all constitutional rights and freedoms which this section permits. The ALS prohibits certain categories of persons, such as public officials and managers, civil servants, administrative justices and statutory arbitrators, from wearing religious symbols in the exercise of their duties. . It also states that certain public services must both be provided and received with one’s face uncovered. Insofar as the reception of these services is concerned, however, this obligation applies only where face uncovering is “necessary to allow […] identity to be verified or for security reasons”. The face-uncovering obligation that is incumbent upon the beneficiaries of public services “does not apply to persons whose face is covered for health reasons or because of a handicap or of requirements tied to their functions or to the performance of certain tasks”.

Wednesday, May 20, 2020, Webinar presentation by Professors David Dyzenhaus and Paul Daly where they explore what a state of emergency means, examine Canada’s federal and provincial responses to the current public health crisis, and suggest strategies on how to ensure that government power is not abused.

Individuals and communities around the globe have been impacted by the COVID-19 pandemic. As federal and provincial governments introduce emergency measures in response to the evolving situation, the actions being taken often fail to take into consideration the unique vulnerabilities of Indigenous communities.

As a result, Indigenous governments are acting to safeguard their citizens and communities from the spread of the COVID-19 virus. Unfortunately, due to chronic underfunding and the suppression of Indigeous governance structures by the Crown, the majority are doing so without the infrastructure and governance capacity required to fully implement these measures.

In just over four months, a single case of COVID-19 in Wuhan, China spread to nearly 4 million people and caused over 270,000 fatalities, leaving the world desperate for treatments, vaccines, or rapid testing technology to help bring an end to physical distancing. On April 12, Alberta Premier Jason Kenney expressed frustration at a perceived delay in Health Canada’s drug and device approval times, stating on Twitter that “I have directed our officials to consider use of COVID19 tests, vaccines, or medications that have been approved by the high standards of at least one credible peer country’s drug agency… We won’t wait for Health Canada to play catch up.”[1]

Public health is quite different from traditional healthcare. Whereas healthcare involves medical interventions between health professionals and individual patients, the field of public health attempts to maintain the health of a population. Rather than health of a person, the objective in public health interventions is “breaking the chain of transmission of infection in a community.”[1] This implicates more stakeholders than conventional healthcare and has wider-ranging effects. The role of law is central to public health interventions in this regard as it is the mechanism that allows for the coordinated action of different authorities necessary to respond to public health issues, especially in an emergency. Law creates a structure within which various public health officials and state authorities can act together to protect the population’s health in a crisis.[2]

Federal-provincial division of powers Public health: The COVID-19 pandemic has brought to the fore the complicated relationship between federal and provincial jurisdiction over public health. On the one hand, the provinces have historically been viewed as having primary responsibility for creating public health institutions and laying down public health norms. The front-line response to COVID-19, such as closing down non-essential businesses, government offices and schools, and sharply restricting the use of public property, has been led by local and provincial public health authorities. But on the other hand, the COVID-19 pandemic originated outside Canada, is global in scope, and requires a coordinated, comprehensive international response. Moreover, an infectious disease outbreak in one province affects all the others, because of inter-provincial mobility — COVID-19 does not respect provincial borders. The international and interprovincial dimensions of public health can only be addressed by the federal government.

Over the past two months, the federal government, the provinces, and municipalities have exercised a variety of legal powers to respond to the COVID-19 pandemic. Not surprisingly, a large number of constitutional issues have emerged — and could soon give rise to constitutional challenges in the courts.

While physical distancing measures are beginning to generate controversy as infringements of the freedoms of assembly and association, they are only one of a long and growing number of constitutional issues, including those arising from: domestic violence; contact tracing via cellphone data; resource allocation decisions in hospitals for end-of-life care; the federal-provincial division of powers with respect to public health (including interprovincial transport and the Emergencies Act); and the delegation of legislative powers by Parliament and provincial legislatures to the executive.

As part of the Verfassungsblog’s excellent symposium on legal responses to the Covid-19 pandemic, Dean Knight penned an especially insightful contribution on New Zealand, noting how the response alla fine del mondo has taken various forms.

In this post, I hope to expand on Dean’s contribution, explaining how governments in Canada have used primary legislation, delegated legislation, soft law and persuasion to respond to the spread of the novel coronavirus, and identifying the different types of accountability challenge attached to these different forms of state power.

Canada is in full emergency mode in its bid to flatten the pandemic curve. But so far the federal government has not declared a federal state of emergency in terms of the Emergencies Act[1], although it has discussed publicly the pros and cons of taking this step and has been urged to do so on the basis that such a declaration would enable a nationwide testing program. There are four main reasons for this hesitation to declare a national state of emergency.